In trials for felonies, it is not in the power of the prisoner,
either by himself or his counsel, to waive the right to be
personally present during the trial. The making of challenges is an
essential part of the trial of a person accused of crime, and it is
one of his substantial rights to be brought face to face with the
jurors when the challenges are made.
Though no specific exception was taken in this case by the
prisoner based upon the fact that he was called upon to challenge
juror not before him, a general exception, taken to the action of
the court in prescribing the method of procedure was
sufficient.
Where no due exception to the language of the court in
instructing the jury is taken at the trial, this Court cannot
consider whether the trial court went beyond the verge of propriety
in its instructions.
On the trial of the case, after the accused had pleaded not
guilty to the indictment, the court directed two lists of
thirty-seven qualified jurymen to be made out by the clerk, one to
be given to the district attorney and one to the counsel for the
defendant, and further directed each side to proceed with its
challenges, independently of the other and without knowledge on the
part of either as to what challenges had been made by the other. To
this method of proceeding the defendant at the time excepted, but
was required to proceed to make his challenges. He challenged
twenty persons from the list of thirty-seven persons from which he
made his challenges, but in doing so he challenged three jurors who
were also challenged by the government. The government challenged
from the list of thirty-seven persons five persons, three of whom
were the same persons challenged by the defendant. This fact was
made to appear from the lists of jurors used by the government in
making its
Page 146 U. S. 371
challenges and the defendant in making his challenges. To the
happening of the fact that both parties challenged the same three
jurors the defendant at the time objected, but the court overruled
the objection and directed the jury to be called from the said two
lists, impaneled and sworn, to which the defendant at the time
excepted.
Held that there was substantial error in this
proceeding, and the judgment of guilty must be reversed.
The case is stated in the opinion.
MR. JUSTICE SHIRAS delivered the opinion of the Court.
This was a writ of error sued out to review a judgment of the
Circuit Court of the United States for the Western District of
Arkansas imposing a sentence of death upon Alexander Lewis,
plaintiff in error, for the murder of one Benjamin C. Tarver at the
Cherokee Nation, in the Indian country.
It appears by the record that on the trial of the case, and
after the accused had pleaded not guilty to the indictment, the
court directed two lists of thirty-seven qualified jurymen to be
made out by the clerk, one to be given to the district attorney and
one to the counsel for the defendant, and that the court further
directed each side to proceed with its challenges independent of
the other, and without knowledge on the part of either as to what
challenges had been made by the other.
It further appears by the record that to this method of
proceeding in that regard the defendant at the time excepted, but
was required to proceed to make his challenges; that he challenged
twenty persons from the list of thirty-seven persons from which he
made his challenges, but in doing so he challenged three jurors who
were also challenged by the attorney for the government.
Page 146 U. S. 372
It further appears that the government, by its district
attorney, challenged from the list of thirty-seven persons five
persons, three of whom were the same persons challenged by the
defendant, and that this fact was made to appear from the lists of
jurors used by the government in making its challenges and the
defendant in making his challenges.
To the happening of the fact that both parties challenged the
same three jurors the defendant at the time objected, but the court
overruled the objection and directed the jury to be called from the
said two lists impaneled and sworn, to which the defendant at the
time excepted.
The assignments of error ask us to consider the validity of the
method of exercising his rights of challenge, imposed upon the
defendant by the order of the court, and also the propriety of the
instruction given by the court to the jury on the subject of the
defense of an alibi, by giving prominence to the cautionary rules
by which they should weigh this class of testimony, and
particularly in saying to the jury that it was a defense often
resorted to, and often attempted to be sustained and made effective
by fraud, subornation, and perjury.
A leading principle that pervades the entire law of criminal
procedure is that after indictment found, nothing shall be done in
the absence of the prisoner. While this rule has at times, and in
the cases of misdemeanors, been somewhat relaxed, yet in felonies
it is not in the power of the prisoner, either by himself or his
counsel, to waive the right to be personally present during the
trial.
"It would be contrary to the dictates of humanity to let him
waive the advantage which a view of his sad plight might give him
by inclining the hearts of the jurors to listen to his defense with
indulgence."
Prine v. Commonwealth, 18 Penn.St. 103, per Gilbson,
C.J. And it appears to be well settled that where the personal
presence is necessary in point of law, the record must show the
fact. Thus, in a Virginia case,
Hooker v. Commonwealth, 13
Gratt. 763, the court observed that the record showed that on two
occasions during the trial, the prisoner appeared by attorney, and
that there was nothing to show that he was personally present in
court on either day,
Page 146 U. S. 373
and added:
"This is probably the result of mere inadvertence in making up
the record, yet this court must look only to the record as it is. .
. . It is the right of anyone, when prosecuted on a capital or
criminal charge, to be confronted with the accusers and witnesses,
and it is within the scope of this right that he be present not
only when the jury are hearing his case, but at any subsequent
stage when anything may be done in the prosecution by which he is
to be affected."
Thereupon the judgment was reversed. And in the case of
Dunn
v. Commonwealth, 6 Penn.St. 384, it was held that the record
in a capital case must show affirmatively the prisoner's presence
in court, and that it was not allowable to indulge the presumption
that everything was rightly done until the contrary appears.
Ball v. United States, 140 U. S. 118, is
to the same effect.
In
Hopt v. Utah, 110 U. S. 574,
110 U. S.
578-579, it is said:
"The argument in behalf of the government is that the trial of
the indictment began after, and not before, the jury was sworn;
consequently that the defendant's personal presence was not
required at an earlier stage of the proceedings. Some warrant, it
is supposed by counsel, is found for this position in decisions
construing particular statutes in which the word 'trial' is used.
Without stopping to distinguish those cases from the one before us
or to examine the grounds upon which they are placed, it is
sufficient to say that the purpose of the foregoing provisions of
the Utah Criminal Code is, in prosecutions for felonies, to prevent
any steps' being taken in the absence of the accused and after the
case is called for trial which involve his substantial rights. The
requirement is not that he must be personally present at the trial
by the jury, but 'at the trial.' The code, we have seen, prescribes
grounds for challenge by either party of jurors proposed, and
provision is expressly made for the 'trial' of such challenges,
some by the court, others by triers. The prisoner is entitled to an
impartial jury composed of persons not disqualified by statute, and
his life or liberty may depend upon the aid which, by his personal
presence, he may give to counsel and to the court and triers in the
selection of jurors. The necessities of the defense may
Page 146 U. S. 374
not be met by the presence of his counsel only. For every
purpose, therefore, involved in the requirement that the defendant
shall be personally present at the trial where the indictment is
for a felony, the trial commences at least from the time when the
work of impaneling the jury begins."
And, further:
"We are of opinion that it was not within the power of the
accused or his counsel to dispense with the statutory requirement
as to his personal presence at the trial. The argument to the
contrary necessarily proceeds upon the ground that he alone is
concerned as to the mode by which he may be deprived of his life or
liberty, and that the chief object of the prosecution is to punish
him for the crime charged. But this is a mistaken view as well of
the relations which the accused holds to the public as of the end
of human punishment. 'The natural life,' says Blackstone,"
"cannot legally be disposed of or destroyed by any individual,
neither by the person himself, nor by any other of his fellow
creatures, merely upon their own authority."
"1 Bl.Com. 133. The public has an interest in his life and
liberty. Neither can be lawfully taken except in the mode
prescribed by law. That which the law makes essential in
proceedings involving the deprivation of life or liberty cannot be
dispensed with or affected by the consent of the accused, much less
by his mere failure, when on trial and in custody, to object to
unauthorized methods."
So too, in the case of
Schwab v. Berggren, 143 U.
S. 442, this language of the Court in
Hopt v.
Utah is cited and approved.
In the case of
Dyson v. Mississippi, 26 Miss. 362, 383,
it was said:
"It is undoubtedly true that the record must affirmatively show
those indispensable facts without which the judgment would be void,
such as the organization of the court; its jurisdiction of the
subject matter and of the parties; that a cause was made up for
trial; that it was submitted to a jury sworn to try it (if it be a
case proper for a jury); that a verdict was rendered, and judgment
awarded. Out of abundant tenderness for the right secured to the
accused by our Constitution to be confronted by the witnesses
against him and to be heard by himself or counsel, our court
has
Page 146 U. S. 375
gone a step further and held that it must be shown by the record
that the accused was present in court pending the trial. This is
upon the ground of the peculiar sacredness of this high
constitutional right. It is also true, as has been held by this
court, 'that nothing can be presumed for or against a record,
except what appears substantially upon its face.'"
Continuing, the court said: "This rule has reference to those
indispensable requisites necessary to the validity of the record as
a judicial proceeding."
As already said, the record shows that at the trial of the case,
the court directed two lists of thirty-seven qualified jurymen to
be made out by the clerk, and one to be given to the district
attorney and one to the counsel for the defendant, and the court
further directed each side to proceed with its challenges, and
without knowledge on the part of either as to what challenges had
been made by the other. Although the record states that after the
challenges the twelve jurors who remained were sworn, yet it
clearly appears from the whole record, and the lists therein
referred to, that after the challenges, there remained, not only
twelve, but fifteen, jurors, and that by the mode adopted, which
required the prisoner to challenge by list, he exhausted some of
his challenges by challenging jurors at the foot of the list, and
who were never reached to be sworn as jurors in the case. And the
record does not disclose that at the time the challenges were made,
the jury had been called into the box, nor that they or the
prisoner were present at the time the challenges were made. It
does, indeed, appear that the clerk called the entire panel of the
petit jury, but it does not appear that when the jury answered to
said call, they were present so that they could be inspected by the
prisoner, and it is evident that the process of challenging did not
begin until after said call had been made. We do not think that the
record affirmatively discloses that the prisoner and the jury were
brought face to face at the time the challenges were made, but we
think that a fair reading of the record leads to the opposite
conclusion, and that the prisoner was not brought face to face with
the jury until after the challenges had been made and the
selected
Page 146 U. S. 376
jurors were brought into the box to be sworn. Thus, reading the
record, and holding, as we do, that making of challenges was an
essential part of the trial, and that it was one of the substantial
rights of the prisoner to be brought face to face with the jurors
at the time when the challenges were made, we are brought to the
conclusion that the record discloses an error for which the
judgment of the court must be reversed.
The right of challenge comes from the common law with the trial
by jury itself, and has always been held essential to the fairness
of trial by jury. As was said by Blackstone, and repeated by Mr.
Justice Story:
"In criminal cases, or at least in capital ones, there is,
in favorem vitae, allowed to the prisoner an arbitrary and
capricious species of challenge to a certain number of jurors,
without showing any cause at all, which is called a 'peremptory
challenge' -- a provision full of that tenderness and humanity to
prisoners for which our English laws are justly famous. This is
grounded on two reasons: (1) as everyone must be sensible what
sudden impressions and unaccountable prejudices we are apt to
conceive upon the bare looks and gestures of another, and how
necessary it is that a prisoner (when put to defend his life)
should have a good opinion of his jury, the want of which might
totally disconcert him, the law wills not that he should be tried
by anyone man against whom he has conceived a prejudice, even
without being able to assign a reason for such his dislike; (2)
because, upon challenges for cause shown, if the reason assigned
prove insufficient to set aside the juror, perhaps the bare
questioning his indifference may sometimes provoke a resentment, to
prevent all ill consequences from which the prisoner is still at
liberty, if he pleases, peremptorily to set him aside."
4 Bl.Com. 353;
United States v. Marchant, 4 Mason 160,
162, and
25 U. S. 12 Wheat.
480,
25 U. S. 482.
See also Co.Lit. 156b; Termes de la Ley,
voc.
Challenge, 2 Hawk, c. 43, § 4;
Regina v. Frost, 9 Car.
& P. 129, 137;
Hartzell v. Commonwealth, 40 Penn.St.
462, 466;
State v. Price, 10 Rich (Law) 351, 355.
There is no statute of the United States which prescribes the
method of procedure in impaneling jurors in criminal
Page 146 U. S. 377
cases, and it is customary for the United States courts in such
cases to conform to the methods prescribed by the statutes of the
states. In the present instance, the method prescribed by the
statutes of Arkansas was not followed, nor does it appear that
there exists any general rule on the subject in the circuit court
of the Western District of Arkansas. While the court in the present
instance did not exceed its jurisdiction in directing the
impaneling of the jury by a method different from that prescribed
by the state statute, and while we do not feel called upon to make
suggestions as to the proper practice to be adopted by the circuit
courts in impaneling juries in criminal cases, yet obviously all
rules of practice must necessarily be adapted to secure the rights
of the accused; that is, where there is no statute, the practice
must not conflict with or abridge the right as it exists at common
law. In the trial of
Jeremiah Brandreth, 32 How.St.Tr.
755, 771, where a question arose as to the order of challenge of
jurors in a capital case, it was said by Mr. Justice Abbott:
"Having attended, I believe, more trials of this kind than any
other of the judges, I would state that the uniform practice has
been that the juryman was presented to the prisoner or his counsel,
that they might have a view of his person. Then the officer of the
court looked first to the counsel for the prisoner to know whether
they wished to challenge him. He then turned to the counsel for the
Crown to know whether they challenged him, and, if neither of them
made any objection, the oath was administered."
In
Townley's Case, 18 How.St.Tr. 347, 348, the
prisoner's counsel moved that before any juryman should be brought
to the book the whole panel might be called over once in the
prisoner's hearing, that he might take notice who did or who did
not appear, which they said would be a considerable help to him in
taking his challenges. This was done by order of the court.
In the case of
Lamb v. State, 36 Wis. 424, where it did
not appear affirmatively by the record that the panel of jurors in
respect to which the prisoner had the right of peremptory challenge
was present in the view of the prisoner, but where the members of
the jury were called into the box
Page 146 U. S. 378
one at a time and either challenged or sworn, and to which
method the prisoner excepted, this was held reversible error, and
the court said:
"We cannot but agree with the learned counsel for the plaintiff
in error that this mode of impaneling the jury largely impaired the
right of peremptory challenge, essential in contemplation of law to
the impartiality of the trial, for it is, as Blackstone says, an
arbitrary and capricious right, and it must be exercised with full
freedom or it fails of its full purpose. The mode adopted gave no
opportunity for comparison and choice between jurors, and little
opportunity for observance of each juror, apparently essential to
the exercise of a right so visionary and fanciful."
In the case of
Hopt v. Utah, already cited, it was held
that the trial by triers, appointed by the court, of challenges of
proposed jurors in felony cases must be had in the presence as well
of the court as of the accused, and that such presence of the
accused cannot be dispensed with. In this case, the triers took the
juror from the courtroom into a different room, and tried the
grounds of challenge out of the presence as well of the court as of
the defendant and his counsel, and it was held by this Court that
it was error which vitiated the verdict and judgment to permit the
trial of challenges to take place without the presence of the
accused, and this although the accused failed to object to the
retirement of the triers from the courtroom, or to the trial of the
several challenges in his absence. The record in this case
discloses that the prisoner objected and took due exception to the
orders of the court directing the method of taking challenges. It
is true that no specific exception was taken by the prisoner based
on the stated fact that he was called upon to challenge jurors not
before him, but we think that the general exception taken to the
action of the court in prescribing the method of procedure was
sufficient.
Another assignment averred error in the court in the selection
of the jury, in that the defendant was required to make his
challenges without first knowing what challenges the government's
attorney had made, and thus challenged three jurors who were also
challenged by the government, whereby he was
Page 146 U. S. 379
deprived of three of his challenges, contrary to law. This
assignment of error is based on a specific exception taken at the
time by the prisoner, and in this respect it differs from the case
of
Alexander v. United States, 138 U.
S. 353, where the same error was assigned, and was not
considered by this Court because it had not been properly excepted
to at the trial. As we have already said, we do not deem it our
duty to prescribe in this opinion rules to regulate the discretion
of the circuit courts in the impaneling of jurors in criminal
cases. Perhaps the preferable course would be for the circuit
courts to adopt the methods prescribed by the statutes of the
states, because such methods are familiar to the bar and the people
of the states. If, however, the circuit courts choose to deal with
such matters by rules of their own, we think it essential that such
rules should be adapted to secure all the rights of the accused. It
does not appear in the present case that the prisoner made any
demand to challenge any of the jury beyond the twenty allowed by
the Revised Statutes. In fact, it does not clearly appear which
side made the first challenges, or that the defendant had not
exhausted his challenges before the government challenged the three
jurors in question. If it were a fact that the defendant had made
his twenty challenges before the government had challenged these
three men, it is difficult to see how his rights were prejudiced by
the action of the district attorney; but we should hesitate to
affirm this judgment upon a record giving us so little information
as to the history of the trial in these respects.
The only other error assigned which calls for notice is the one
objecting to the language used by the court when cautioning the
jury in respect to the testimony bearing on the defense of an
alibi. Whether the language of the learned judge went beyond the
verge of propriety we are not called upon to consider, as no due
exception was taken at the trial and no opportunity was therefore
given the court to modify the charge.
The objection to the language used, urged on the motion for a
new trial, cannot be regarded as equivalent to an exception at the
trial. Because, however, of the error into which the
Page 146 U. S. 380
court fell in directing secret challenges to be made, and not in
the presence of the prisoner and the jurors, the judgment of the
court below must be reversed, and the case remanded for a new
trial.
Judgment reversed.
MR. JUSTICE BREWER, dissenting.
I dissent from the opinion and judgment of the Court in this
case. Where the question is as to the inferences to be drawn from a
record, it is well to have its very language before us. The entire
record bearing upon the matters in controversy consists of a single
journal entry and a portion of the bill of exceptions. The journal
entry is as follows:
"Tuesday Morning, October 20th, 1891"
"[Caption omitted.]"
"On this day come the United States of America, by Wm. H. H.
Clayton, Esq., attorney for the Western District of Arkansas, and
come the said defendant in custody of the marshal and by his
attorneys, Mess. Barnes & Reed, and it appearing from the
returns of the marshal that the said defendant has been served with
a duly certified copy of the indictment in this cause, and a full
and complete list of the witnesses in this cause, and that he has
also been served with a full and complete list of the petit jury,
as selected and drawn by the jury commissioners for the present
term of this Court, more than two entire days heretofore, and
having heretofore had hearing of said indictment, and pleaded not
guilty thereto, it is, on motion of the plaintiff by its attorney,
ordered that a jury come to try the issue joined, whereupon the
clerk called the entire panel of the petit jury, and, after
challenge by both plaintiff and defendant, the following were
selected for the trial of this cause:"
"Geo. A. Bryant, John W. Clayborn, Henry P. Dooly, James O.
Eubanks, John A. Fisher, Henry P. Floyd, Geo. W. Hobbs, Hugh F.
Mullen Jno. D. McCleary, Obadiah C. Richmond,
Page 146 U. S. 381
Joseph Stafford, Henry B. Wheeler, twelve good and lawful men of
the district aforesaid, duly selected, impaneled, and sworn to try
the issue joined, and a true verdict render according to the law
and the evidence; and, after hearing a portion of the evidence, and
there not being time to further progress in the trial of this
cause, they were put in charge of a sworn bailiff of this
court."
The recital in the bill of exceptions is in these words:
"Be it remembered that on the trial of the above-entitled cause
the court directed two lists of 37 qualified jurymen to be made out
by the clerk, and one given to the district attorney and one to the
counsel for the defendant, and the court further directed each side
to proceed with its challenges independent of the other, and
without knowledge on the part of either as to what challenges had
been made by the other."
"To which method of proceeding in that regard defendant at the
time excepted, but was required to proceed to make his challenges,
and he challenged 20 persons from the list of 37 persons, from
which he made his challenges, but in doing so he challenged 3
jurors who were also challenged by the attorney for the government,
to-wit, James H. Hamilton, Britton Upchurch, and James P. Mack. The
government, by its district attorney, challenged from the list of
37 jurors 5 persons. In making its challenges, the same three
persons as those challenged by the defendant, to-wit, James H.
Hamilton, Britton Upchurch, and James P. Mack, were challenged by
the government, as appears from the lists of jurors used by the
government in making its challenges and the defendant in making his
challenges."
"The 12 persons who were left of the panel of 37, after both
sides had made their respective challenges, were the ones selected
to try, and who did try, the case."
"To the happening of the fact that both parties challenged the
same three jurors the defendant at the time objected, but the court
overruled the objection and directed the jury to be called from the
said two lists, impaneled and sworn, to which the defendant at the
time excepted. "
Page 146 U. S. 382
In addition, in the bill of exceptions are found the two lists
of jurors, given the one to the government and the other to the
defendant. Upon this record the case turns. We look to the journal
entry for a recital of the facts necessary to constitute a legal
trial. That recital may be in general terms, but still should
affirmatively show everything essential to a valid criminal trial.
This journal entry clearly affirms the presence of the defendant.
The language is: "Come the said defendant in custody of the
marshal," etc. Such presence, having been once stated, will be
presumed to have continued through the entire day unless the
contrary is shown. It never has been even suggested that the
journal should contain at the statement of each separate proceeding
of the day a fresh recital of the personal presence of the
defendant. In
Jeffries v. Commonwealth, 12 Allen 145, 154,
it was said:
"Nor is it necessary that the record should in direct terms
state that the party was personally present at the time of the
rendition of the verdict and during all the previous proceedings of
the trial. However necessary it may be that such should have been
the fact, it is not necessary to recite it in the record. The
record shows that he was present at the arraignment, and present to
receive his sentence. . . . When the record shows that the
defendant was in court at the opening of the session the
presumption is that he continued in court during the entire day,
and this presumption has been extended to the whole trial."
Wharton's Cr.Pl. and Pr. § 551;
State v. Lewis, 69 Mo.
92;
Kie v. United States, 27 F. 351;
Cluverius v.
Commonwealth, 81 Va. 787;
Folden v. State, 13 Neb.
328;
Irvin v. State, 19 Fla. 872;
People v. Sing
Lum, 61 Cal. 538;
People v. Jung Qung Sing, 70 Cal.
469;
New Mexico v. Yarberry, 2 N.M. 391. No claim,
therefore, can be successfully presented that anything transpiring
on that day took place in the absence of the defendant.
The same journal entry further recites that "the clerk called
the entire panel of the petit jury, and, after challenge by both
plaintiff and defendant," the jury was selected. Where the general
term is used, as here, "challenge," it means
Page 146 U. S. 383
all challenges. It is used in its comprehensive sense. It is
unnecessary to subdivide, and say, after "challenge to the array,"
"challenges for cause," and "peremptory challenges;" the single
general word is sufficient. But this journal entry does not stop
with this. After naming the jurors and describing them as good and
lawful men, it adds, "duly selected, impaneled, and sworn." Such
will be found the uniform formula of journal entries. In
Kie v.
United States, 27 F. 351, 357, a case taken on error to the
circuit court, Judge Deady observes: "The record simply states in
the usual way, when the case was called for trial, a jury came, a
and was duly impaneled and sworn."
Potsdamer v. State, 17
Fla. 895;
Rash v. State, 61 Ala. 89. In Wharton's Criminal
Pleading and Practice, sec. 779
a, the author says:
"Thus, when the record shows impaneling and swearing, it will be
presumed, in error, that the swearing was in conformity with the
law, and the impaneling was regular."
It is hardly necessary to refer to the familiar fact that in
criminal as in civil cases, the presumption is in favor of the
regularity of the proceedings in the trial court, and that error
must affirmatively appear. Powell on Appellate Proceedings, p. 326,
sec. 50; Wharton's Cr. Pleading and Practice, sec. 779
a,
(9th ed.), and cases cited in note. I take it, therefore, that it
is not open to doubt that if nothing was before us except the
journal entry, there would be no error apparent in the proceedings
in regard to the jury.
How does the matter stand from the bill of exceptions? A bill of
exceptions is prepared by the party, and, being prepared by him, he
may state, and ought to state, only those facts which present the
very question he desires to raise. If the objection is to a ruling
on the admission of testimony, he should state only that testimony
and enough of the case to show its relevancy. It would be absurd to
require him to set out all the testimony, or to state in terms that
there was no objection to the balance. As was said in
Lincoln v.
Claflin, 7 Wall. 132,
74 U. S.
136,
"A bill of exceptions should only present the rulings of the
court upon some matter of law -- as upon the admission or exclusion
of evidence -- and should contain only
Page 146 U. S. 384
so much of the testimony, or such a statement of the proofs made
or offered, as may be necessary to explain the bearing of the
rulings upon the issues involved."
If he objects to a specific portion of a charge, he should state
only that portion. Putting in the whole charge is clearly against
Rule 4 of this Court, and has been explicitly condemned.
United
States v. Rindskopf, 105 U. S. 418.
Indeed, the single function of a bill of exceptions is to bring
upon the record so much of the proceedings as will disclose the
precise question which the party desires to have ruled upon, and
when prepared by counsel and presented to the court, if it states
the facts truly, the judge ought to sign it, and it is unnecessary
for it to set forth affirmatively that there was no other error in
the proceedings or to state all the facts of the case in order to
disclose that there was no other error. Bearing in mind this, which
is confessedly the scope and purpose of a bill of exceptions, I
notice that in this bill, not a word is said about the absence of
the jurors from the box, the personal presence or absence of the
defendant, or whether the defendant was brought face to face with
the jurors. If he had any fault to find in respect to these
matters, the facts in respect thereto should have been explicitly
stated. That he made no claim of wrong therein is evident from the
fact that he does not mention them. Examining the language of the
bill of exceptions carefully, it states that two lists were given,
one to plaintiff and one to defendant, and the court directed them
to proceed with their challenges, each separately of the other and
without knowledge of what challenges were being made by the other.
The follows the exception, "to which method of proceeding in that
regard defendant at the time excepted." I respectfully submit that
language could not be used which makes clearer the fact that the
objection ran alone to the fact that each party was required to
make its challenges independently of the other and without
knowledge of what the other was doing. It is not simply said, "to
which method of proceeding," but, as if to limit carefully to the
particular matter, it says, "to which method of proceeding in that
regard," and at the close of the recitals it is further stated, "to
the happening
Page 146 U. S. 385
of the fact that both parties challenged the same three jurors
the defendant at the time objected." This is all which in any way
tends to show that there was anything wrong in the matter of
challenges or that anything took place in the absence of the
defendant.
Again, if the defendant has taken no exceptions to these
proceedings, it is settled that this Court would not inquire as to
whether there was error in them. In
Alexander v. United
States, 138 U. S. 353, a
case coming from the same district, the precise state of facts in
respect to the impaneling of the jury appeared, but without any
exceptions. The response made by the Court to the assignment of
error was in these words:
"The decisive answer to this assignment is that the attention of
the court does not seem to have been called to it until after the
conviction, when the defendant made it a ground of his motion for a
new trial. It is the duty of counsel seasonably to call the
attention of the court to any error in impaneling the jury, in
admitting testimony, or in any other proceeding during the trial,
by which his rights are prejudiced, and in case of an adverse
ruling to note an exception."
Of course, then, if the matters are not vital to the trial, and
may be waived by failure to object, as thus decided, clearly the
defendant can take advantage of nothing to which he does not
except. Hence, supposing that after the foregoing recital in the
bill of exceptions there had appeared further recitals showing
various irregularities in respect to the challenges, sufficient of
themselves, if excepted to, to compel reversal, but with no
following exception, clearly, under the rule laid down in
Alexander v. United States, we should have been compelled
to ignore them. Surely, then, when the exception runs to a specific
matter, it cannot be broadened so as to extend to a matter which is
confessedly not stated, but is only inferred as probable from what
is stated. In short, when the journal entry, which is of itself a
part of the record and which is the court's statement of what took
place, recites the personal presence of the defendant and the full
exercise of the right of challenge in language which is the
ordinary formula of journal entries and which has been uniformly
regarded as
Page 146 U. S. 386
sufficient to infer from the bill of exceptions prepared by the
defendant, whose purpose is only to present the facts bearing upon
the particular error alleged by him, and which only specifies in
terms a single act to which exception is taken, to-wit, the fact
that plaintiff and defendant were compelled to challenge
peremptorily, without knowledge of the other's challenges, that any
challenges took place in the absence of the defendant, to hold that
an exception which is precise to a particular matter can be
broadened so as to include other matters not specified, and
thereupon to set aside a judgment of guilty, solemnly rendered,
seems to me to overturn established rules governing appellate
proceedings, to destroy confidence in courts, and to work great
wrong to the public.
Further than this, in the brief of counsel for the defendant
there is no claim that the jury were not present in the box, face
to face with the defendant, when he was called upon to make his
challenges. The only points they make in respect to the matter are
that the mode of designating the jury was not recognized by the
statutes of the State of Arkansas, nor in conformity with any rule
prescribed by Congress, and that, by reason of the fact that three
jurors were challenged by both the government and defendant, the
latter was really deprived of three peremptory challenges.
Now if it should prove to be the case -- as it seems to me is
not only possible but probable -- that the defendant was in fact
present in the courtroom during all the challenges, that the entire
panel of jurors was called into the box before him, that in their
presence he was allowed and received all the challenges for cause
he desired to make, and that only after a full inspection of the
jury and a questioning of each one so far as was desired, were the
lists placed in the hands of the respective counsel for peremptory
challenges, will not the ordinary citizen believe that substantial
justice would have been done if this Court had omitted to read into
the record something which is not expressly stated therein, which
defendant's counsel did not claim to have happened, and which did
not in fact happen?
So far as respects the matter of contemporaneous challenging
Page 146 U. S. 387
at common law, and generally where no order is prescribed by
statute, the defendant is required to make all his challenges
before the government is called upon for any. In that aspect of the
law, contemporaneous challenging works to the injury of the
government, rather than to that of the defendant. Further, in the
only case in which the precise question has been presented,
State v. Hays, 23 Mo. 287, cited approvingly in
Turpin
v. State, 55 Md. 462, the decision was in favor of the
validity of such manner of challenge. In view of the discretion
which, in the absence of statute, is confessedly vested in the
trial court as to the manner of challenges, there was no error in
this sufficient to justify a new trial.
I am authorized to say that MR. JUSTICE BROWN also dissents.